On April 16, 2013, U.S. EPA finally issued several guidance documents governing vapor intrusion at contaminated properties, including those properties with issues from petroleum and chlorinated solvents. This new guidance expands upon a 2002 guidance document and requires regional EPA offices to address vapor intrusion risks during the required five-year reviews for most completed Superfund cleanups. Owners and operators of drycleaners, gas stations, and other properties potentially impacted by petroleum or solvents, including volatile organic compounds (VOCs), as well as anyone considering the purchase or sale of such properties, are the most likely to be affected by these vapor intrusion documents.Vapor intrusion, the migration of hazardous vapor from contaminated soil or groundwater into overlying buildings, is of great concern at sites contaminated by VOCs, such as solvents like perchloroethylene (PCE or Perc) and trichloroethylene (TCE), as well as several non-chlorinated gasoline components. In 2002, EPA issued draft guidance governing the investigation of vapor intrusion at Resource Recovery and Conservation Act (RCRA) corrective action, Superfund, and Brownfield sites, but EPA never finalized that document. The 2002 Draft Guidance did not cover vapor intrusion from petroleum releases at underground storage tank sites, but a recent scientific analysis for EPA concluded that “screening for petroleum vapor intrusion (PVI) using the same methodology for chlorinated hydrocarbons is overly conservative; a different "approach is needed for PVI.”EPA's latest guidance addresses Superfund sites which require five-year reviews. These sites do not allow for unlimited use and unrestricted exposure because the selected remedy leaves residual amounts of hazardous substances. As part of the five-year review process, EPA will gather data on vapor intrusion pathways and assess the protectiveness of the selected remedy. If “issues are identified that may prevent the response action from being protective, now or in the future,” EPA will document the issues and the follow-up recommendations and actions … in the five-year review report.” This could result in the “re-opening” of longstanding Superfund remedies to address the vapor intrusion.EPA's guidance does not supersede state vapor intrusion guidance which can be incorporated into Superfund remedial plans. It is not yet clear how EPA's vapor intrusion screening levels will interact with the Occupational Safety and Health Administration's (OSHA's) Permissive Exposure Levels, which contain a separate set of standards for indoor air concentrations at work facilities. Finally, last year EPA solicited comments on potential rules that would account for vapor intrusion concerns in the ranking and listing of Superfund National Priorities List sites, but the agency has not yet proposed regulations.In Ohio, special consideration is needed for vapor intrusion concerns in relation to generic direct soil contact standards under the Voluntary Action Program (VAP). The general belief is that if soil contamination is below the VAP generic standard for residential uses, the property is unrestricted and nothing more is required. However, Ohio's vapor intrusion guidance indicates that the VAP soil standards do not apply for VOCs and more risk assessment is necessary. Too often, real property developers and attorneys misunderstand the need to consider vapor intrusion and the risk analysis before assuming property is “clean” and unrestricted. If your property is believed to have VOCs or petroleum on site, perhaps based upon a Phase I or Phase II assessment, you should consider further assessment of the vapor intrusion issues which might exist. As always, experienced legal counsel can be invaluable in determining the next steps.

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